Transgender Inmate Denied Access to the Courts

The American courts are not kind to the poor, and are downright hostile to at least one poor, transgender woman.
09/02/2016 04:49 pm ET Updated Sep 03, 2017

The American courts are not kind to the poor, and are downright hostile to at least one poor, transgender woman.

Aileta Jane Ilana, born Christopher James Swicegood, is a 24-year-old transgender inmate housed at the medium-security Federal Correctional Institution Petersburg, Virginia. Born and raised in Idaho, she now resides in a male federal prison, where she will remain for the next decade. While in prison Swicegood has received treatment for her gender dysphoria and has started the transition from a male to a female presentation.

"Ever since I can remember I felt as though I was a girl, but I lacked the financial and professional support to start my transition," said Swicegood.

As part of her transition, she has taken the name of Aileta and has asked friends and family to address her with female pronouns. She is also in the process of seeking hormone replacement therapy and other treatments that are in line with the World Professional Association for Transgender Health Care, the prevailing standards of care for such individuals.

"The Bureau of Prisons seems virulently opposed to helping me. While I generally feel safe, health care staff act as though I'm a burden. So far, they have refused to adhere to prevailing standards of care. They would rather ignore me than help me," explained Swicegood.

As a means to take charge of her own sense of self, she has elected to legally change her name to Aileta. As she asserts, "The name 'Christopher' pains me. A person's name is personal, and it should be up to them what they are called. Whenever I'm referred to as 'Christopher' or with male pronouns it is like a slap in the face; it's as if my own sense of whom I am is disregarded."
The process of changing her name should have been simple, but in the conservative courts of the Commonwealth of Virginia, it turned out to be impossible. On October 19, 2015 she filed her petition. Since she only makes $5.25 a month from her prison job, a family friend paid the $41 filing fee for her. Bishop Knott, Jr., Clerk of Court for the Prince George County Circuit Court initially accused Swicegood's family friend of pretending to be an attorney for sending in the $41 money order, but ultimately allowed the case to move forward. A hearing was set for January 19, 2016, and Susan O. Fierro, the Commonwealth Attorney, was allotted 30 days to file responsive pleadings.

On January 13, 2016, 50 days after the deadline, Fierro filed numerous objections to Swicegood's name change petition. Six days later the hearing was held. Swicegood was not permitted to attend due to being in prison, and she could not afford an attorney. On January 19, 2016, without hearing anything from Swicegood, Judge Nathan C. Lee denied the name change, reasoning that being transgender is not "good cause" for a name change. Judge Lee's denial came in the mail prior to Swicegood even receiving Fierro's objections.

"I was beyond frustrated. They had a certain number of days to file objections and elected not to. Yet, the court permitted a late filing, which didn't permit me to respond to the objections or even see them, and the court held a hearing that I could not attend. This seems criminal. Its certainly not access to the courts," said Swicegood.

The Bureau of Prisons refused to provide Swicegood with any Virginia state case law during the pendency of her case. According to an administrative remedy response from Eric Wilson, FCI Petersburg Warden, "You may solicit or purchase legal materials from outside the institution. You may also obtain this information from an authorized attorney visit from a retained attorney." Mid-Atlantic Regional Director J. F. Caraway further asserted, "the Bureau of Prisons is not mandated to provide state case law and other state legal materials." This left Swicegood with no access to state law or even the rules of court. Her administrative remedy remains pending with the Bureau's Central Office, overdue for several months now.

"I had to rely on friends in here to ask their friends outside of prison to locate some state case law. There wasn't much, but we eventually managed to put together an appeal," explained Swicegood.

Despite all of the obstacles, Swicegood managed to file her appeal to the Supreme Court of Virginia on May 18, 2016. After several letters with Chief Deputy Clerk of Court Douglas B. Robelen, the petition was deemed timely filed. Swicegood requested that an attorney be appointed due to having no real access to Virginia law. For several months she waited for a response, which came in August 2016.

The door was yet again slammed in her face. The Supreme Court of Virginia refused to hear the case, stating in an August 26, 2016 decision, that Swicegood had "failed to timely file the petition for appeal[.]" To add insult to injury, the court also denied the motion for appointment of counsel. No one was going to provide her with access to the law of the state of Virginia, despite her obvious needs. Not the Bureau of Prisons, not the Prince George County Circuit Court, and not the Supreme Court of Virginia. Swicegood, an American citizen with a legitimate claim under Virginia law, would be prevented from accessing Virginia law by the authorities.
"Evidently, if you are transgender and incarcerated within the Federal Bureau of Prisons, you have nothing coming to you. My one real hope here was that I could at least know the law and press my case. My hopes were dashed," Swicegood explained, holding back tears. "But I will push on. Luckily, federal prisoners do have access to federal case law. So we're Supreme Court bound."

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at www.ChristopherZoukis.com, PrisonEducation.comand PrisonLawBlog.com